Combination Steel & Iron Co. v. St. Paul City Ry. Co.
| Decision Date | 11 January 1893 |
| Citation | 53 N.W. 1144,52 Minn. 203 |
| Parties | Combination Steel & Iron Co. v. St. Paul City Ry. Co. et al |
| Court | Minnesota Supreme Court |
Argued December 13, 1892
Appeal by defendant, the St. Paul City Railway Company, from an order of the District Court of Ramsey County, Kelly, J., made July 9, 1892, denying its application for another trial of this action.
The plaintiff, the Combination Steel and Iron Company, a corporation of Chester, Pa., on April 11, 1887, contracted to sell to the defendant the New York Cable Railway Construction Company, at $ 41 per ton, 6,110 steel rails ten feet in length, to be bent into yokes and used by it in performing its contract with the St. Paul City Railway Company to construct its Selby Avenue Cable Line in St. Paul. The Construction Company accepted and used only 4,853 of these rails. The plaintiff claimed due it for rails delivered a balance of $ 3,349.57, with interest from September 27, 1887 and it filed a lien therefor on this cable line at St. Paul and brought this action to foreclose the lien and obtain a sale of the cable line, its equipment and franchise, to pay the debt. The Railway Company answered among other things that the Construction Company had paid plaintiff in full for these rails. The issues were first tried April 15, 1890, and defendant prevailed on the defense of payment, but on appeal this court reversed the trial court, 47 Minn. 207, and the action was sent down, and was again tried January 28, 1892. The judge found that all the facts alleged in the complaint were true except that the total number of steel rails furnished was 4,853, of which fifty to one hundred were not actually used in constructing the cable line, and he ordered judgment as prayed in the complaint.
The facts regarding payment by the Construction Company for rails delivered were these: On October 3, 1887, at New York City it made and delivered to plaintiff its note for $ 3,349.57 payable in that city thirty-five days thereafter, with interest, and received credit for it on the plaintiff's account books to balance the account. A copy of the account was furnished to the Construction Company, receipted in full, but the note was never paid. On December 12, 1887, the plaintiff brought an action in the Court of Common Pleas at Philadelphia against the Construction Company alleging that it made a contract to purchase 6,110 steel rails at $ 41 per ton, but had accepted only 4,853, "which it paid for in cash, or by note;" that plaintiff tendered the remaining 1,257 rails, but they were not accepted, and on November 10, 1887, the Construction Company executed a general assignment of its property to Jerome Carty in trust for the benefit of its creditors. It demanded judgment for $ 897.86 damages for breach of the contract. The receipted account and a duly certified copy of this complaint were offered in evidence by defendant on the trial of this action, in proof of its claim of payment. Much oral evidence was also given upon the question whether the note was accepted as absolute or only conditional payment. Plaintiff introduced in evidence the decision of the Court of Appeals of the State of New York in the case of Jagger Iron Co. v. Walker, 76 N.Y. 521, as evidence of the law at the place where the note was executed and made payable.
Order affirmed.
H. J. Horn, for appellant.
The court makes no finding upon the issue of payment, tendered by the defendant in its answer. The complaint avers negatively that the claim of the plaintiff has not been paid. This negative averment however does not tender an issue, that is the defendant could not meet this averment by a mere denial. It was incumbent upon the latter to plead payment as an affirmative defense, and the issue of payment is raised on the answer of the defendant, and reply of the plaintiff, and not upon the complaint. Boone, Code Pleading, § 67; Piercy v. Sabin, 10 Cal. 30.
There was sufficient evidence to sustain the defense of payment, and the court erred in not considering it and in not making a finding accordingly upon this issue. The receipt was sufficient per se to make out a prima facie case. There was however, on the retrial, considerable other evidence showing that this receipt was given and accepted as payment and discharge of the debt. It did not profess to be a mere receipt for the promissory note in question for $ 3,349.57, but for the debt, and as absolute payment of the same.
The record of the suit brought by the plaintiff against the Construction Company was also placed in evidence. This was a suit instituted in the Court of Common Pleas for the County of Philadelphia, to recover damages for alleged breach of the contract. The complaint avers that all the rails that were delivered were paid for in cash or by note. This is additional corroboration of the acceptance of the note as payment. The law of this state with respect to the effect of taking a promissory note as payment, is that if there is an agreement or understanding between the parties that the promissory note is accepted as payment, the original debt is extinguished. Goenen v. Schroeder, 18 Minn. 66, (Gil. 51;) Daly v. Proetz, 20 Minn. 411, (Gil. 363;) Symons v. Northwestern Mut. Life Ins. Co., 23 Minn. 491.
Eller & How, for respondent.
The complaint alleges that the contract price for the rails is...
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